Photographer
BCG
Posts: 7316
San Antonio, Florida, US
okay...a gal scans in an image of yours...would you take the time to aquire an attorney for a c&d order???...what is your real loss here???...kmart used an image of a local shooter without notice...it was used for a sales flyer...the bottom line???...local shooter could ony get the value of the photograph which was determined by the court to be $30.00
Photographer
Halcyon 7174 NYC
Posts: 20109
New York, New York, US
Local shooter getting processing done at KMart doesn't charge $3000 a day, probably? I'll bet the picture was worth $30 because of the photographer's prior works and established rates.
If someone is using one of my pictures for financial gain without my consent I'm going to damn sure get a lawyer who can take their piggy bank away.
Photographer
BCG
Posts: 7316
San Antonio, Florida, US
Ched wrote:
Local shooter getting processing done at KMart doesn't charge $3000 a day, probably? I'll bet the picture was worth $30 because of the photographer's prior works and established rates.
If someone is using one of my pictures for financial gain without my consent I'm going to damn sure get a lawyer who can take their piggy bank away. but what damages can you get???...local dude was/is a master photographer...even his attorney said it isnt worth it...can you really score a HUGE settlement?!?
Photographer
SolraK Studios
Posts: 1213
Atlanta, Georgia, US
BCG wrote:
okay...a gal scans in an image of yours...would you take the time to aquire an attorney for a c&d order???...what is your real loss here???...kmart used an image of a local shooter without notice...it was used for a sales flyer...the bottom line???...local shooter could ony get the value of the photograph which was determined by the court to be $30.00 is there a link to this case I would love to read it
Photographer
James Jackson Fashion
Posts: 11132
Philadelphia, Pennsylvania, US
BCG wrote:
but what damages can you get??? From http://www.copyright.gov
"if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law"
"Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150, 000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney's fees incurred by the copyright owner to enforce his or her rights."
Photographer
Eli Anthony
Posts: 550
Mentor, Ohio, US
Kmart and Sears merged, I'd be eyeballing some tools, household items and what not. Someone would be coming off something and some $$.
Photographer
Halcyon 7174 NYC
Posts: 20109
New York, New York, US
BCG wrote:
but what damages can you get???...local dude was/is a master photographer...even his attorney said it isnt worth it...can you really score a HUGE settlement?!? His attorney dropped the ball. Yes you can. The corporation stole something from him, causing emotional harm to an artist, and should be penalized in return. A $30 penalty is nothing to K-Mart, a judge would be inclined to make the award larger.
Photographer
C R Photography
Posts: 3594
Pleasanton, California, US
BCG wrote:
local shooter could ony get the value of the photograph which was determined by the court to be $30.00 Okay, but what about the monetary loss the photographer received?
There's got to be an underlying agreement or copyright notice there.
A good attorney is gonna cost you $250.00 an hour to write a C&D order on copyright infringement and what it might cost her if she does not comply.
If the model is making money off your image without reimbursing you and you do have an agreement in place, you still want to make sure she's not judgment proof i.e. 2 steps away from bankruptcy or has zip to zero assets.
I prefer long extended ass kickingâs versus expeditious trials 
Photographer
Halcyon 7174 NYC
Posts: 20109
New York, New York, US
A model stealing images is different from KMart.
Photographer
wishingtree photography
Posts: 1042
New Orleans, Louisiana, US
One thing to keep in mind....attorney's fees and statutory damages are only available if the infringement occurred before registration of the copyright. We photogs rarely register photos early on. Can still get actual damages and injunction, but as noted, this is a small amount of $.
This shows the value of registration if you are circulating your work widely (but it is costly in the case of photos as each registration fees would add up.)
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
raveneyes wrote:
From http://www.copyright.gov
"if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law"
"Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150, 000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney's fees incurred by the copyright owner to enforce his or her rights." That is a good cite, there are a couple of important things to note though. First, statutory damages only apply if you register the image before the dispute.
Second, those are not guaranteed amounts, just limits. However, registration is important because you don't have to prove actual damages and that is the problem without prior registration.
Without registration and statutory damages you are not entiteled to the value of your time, damages may be measured in the loss you suffered by the illegal use of the photo. That can be a very small amount. It depends on what the Court decides the actual value of the photo is.
It is complicated. But if you send the person a bill for $3,000, it is unlikely that you will be awarded that amount unless you can show damages. But then again, you never know, a judge may by the invoice. The problem is you just don't know what a court will do.
Unless you register an image in advance, the system is stacked against a photographer, to some degree. But that is the point of encouraging registration.
But haven't we covered this subject a few times already?
Photographer
wishingtree photography
Posts: 1042
New Orleans, Louisiana, US
alan, great minds think alike ! this all suggests to me that the remedies for copright infringement, in the wired world, and particularly as applied to photos, may be insufficient.
Photographer
Halcyon 7174 NYC
Posts: 20109
New York, New York, US
wishingtreephotography wrote:
One thing to keep in mind....attorney's fees and statutory damages are only available if the infringement occurred before registration of the copyright. If I read this right, KMart had the picture because they processed it, which means there was no opportunity for a registered copyright. An exception should be in order.
Photographer
James Jackson Fashion
Posts: 11132
Philadelphia, Pennsylvania, US
Alan from Aavian Prod wrote:
First, statutory damages only apply if you register the image before the dispute. You are incorrect...
http://www.copyright.gov/help/faq/faq-infringement.html
If you believe that your copyright has been infringed and you anticipate a legal dispute, if you have not yet done so, it is advisable that a registration be made as soon as possible in order to secure the opportunity for valuable remedies and litigation advantages available for timely registration under the Copyright Act. If a work is registered prior to infringement or within three months of publication, statutory damages will be available as an option for monetary relief and the recovery for attorneyâs fees may be available. In addition, a registration made before or within five years of publication of the work provides a presumption of the validity of the copyright and the facts stated within the registration certificate. A certificate of registration (or a rejection of an application for copyright) is a prerequisite for U.S. authors seeking to initiate a suit for copyright infringement in federal district court.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
Ched wrote:
If I read this right, KMart had the picture because they processed it, which means there was no opportunity for a registered copyright. An exception should be in order. You have a point. However, if you register the images on a timely basis, you will probably have it registered before the dispute. You have three months to file it after publication. Even though they printed the image, it will still take them some time to violate.
If you registered promptly but even at that they violated so quickly that you couldn't have reasonably regitered in time, I am sure the court would take that into consideration. But you are right, it is a grey area.
Photographer
BCG
Posts: 7316
San Antonio, Florida, US
i say we appoint judge wapner or judge judy to the supreme court...there was another tv judge i liked...he was a black dude frome detroit...he kept it real in his court room...they could solve this whole copyright mess.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
raveneyes wrote:
You are incorrect...
http://www.copyright.gov/help/faq/faq-infringement.html
If you believe that your copyright has been infringed and you anticipate a legal dispute, if you have not yet done so, it is advisable that a registration be made as soon as possible in order to secure the opportunity for valuable remedies and litigation advantages available for timely registration under the Copyright Act. If a work is registered prior to infringement or within three months of publication, statutory damages will be available as an option for monetary relief and the recovery for attorneyâs fees may be available. In addition, a registration made before or within five years of publication of the work provides a presumption of the validity of the copyright and the facts stated within the registration certificate. A certificate of registration (or a rejection of an application for copyright) is a prerequisite for U.S. authors seeking to initiate a suit for copyright infringement in federal district court. You are misreading the statute. What registering within five years does is ensures the validity of the copyright, it doesn't make you eligible for statutory damages.
Let me see if I can explain. Let's say you take a picture today and you wait six years to register it. Then you discover that somebody improperly used your picture 4.5 years after you took it. Because you waited six years, the thief can challenge the copyright on a factual basis. You will have to prove the validity of the copyright, it won't be presumed.
On the other hand, if you take a picture today and register it in six months (any time in less than five years), the copyright will be presumed to be valid. Absent somebody else producing a registration filed earlier than yours, you will not have the obligation to prove the validity of the copyright. Instead, since there is a presumption of validity, if someone else claims the copyright belongs to them, the burden of proof will fall upon them to prove the copyright is invalid rather than the burden of proof falling upon you to prove it is valid.
It is an important distiniction. The law tips heavily in your favor if registration is made before the five years has elapsed.
However, that is a separate issue with respect to statutory damages. You are elegible to collect statutory damages only if the registration occurs before the dispute arises. The statute is written that way to a) avoid some of the disputes that would occur if there is a race to register an image after a violation; and b) to encourage timely registration.
In order to enforce a copyright at all, you must first register the image. So the heirarchy of the statute is:
1) if you register the image within five years and before the dispute, the copyright is presumed to be valid and you are entitled to statutory damages
2) if you register the image within five years but after the dispute commences, the copyright is presumed to be valid but you may not collect statutory damages
4) If you register the image more than five years you will not qualify for statutory damages and there will be no presumption as to the validity of the copyright. The copyright may be valid but if challenged you will have to prove the factual basis for the copyright.
I know it is complicated. But the date of registration and the time that the dispute occurs.
Here is a quote from Seven Myths of Copyright by David Amkraut. Read it carefully:
MYTH # 1.
"I do not need to register my photos with the copyright office, because I 'automatically' have copyright at the instant I snap the shutter."
This is a serious misunderstanding of the law. Yes, you do own copyright without registration. BUT if you want to protect your photos from theft, you should register them with the Copyright Office, before you publish or distribute them. If you register your photos, you gain powerful remedies against infringers. These can include:
* Civil penalties ("damages"). The pirate is on the hook for up to $150,000 for each misused photo;
* Attorney's fees: the infringer has to pay your attorney's hourly fees and all costs such as copies, postage, filing fees, etc.
* Restraining orders, Preliminary and Permanent Injunctions against the infringer, and even seizure of the pirate's computer equipment in some cases.
An important practical point is that if the photos are registered, you might find an attorney to take the case on "contingency," which means he takes the risk of gambling on a win, rather than you paying him by the hour. Faced with a lawsuit over registered images-and an injunction which would likely mean being put out of business forever-many pirates will quickly settle up and pay.
By contrast, if you did not register your photos, it is almost impossible, as a practical matter, to nail an infringer. To get any damages at all, you have to prove how much the pirate made off your particular photos, or exactly how much money the theft cost you. Either is almost impossible to prove. And you do not recover attorney's fees, so the cost of the lawsuit would far outweigh your possible recovery.
So-if you have registered your work, you are in good shape to "convince" an infringer to stop, or to successfully sue him. If you have not registered, you probably cannot do anything about pirates.
Notice that he is specific in saying that you should register BEFORE publication.
David is the attorney that handled the suit against Compuserve. He is an expert in the field. Registration prior to the dispute is one of the most fundemental tenets of the copyright statutes.
Read the statute more carefully and you will understand, but I see how you have read it that way.
Makeup Artist
Camera Ready Studios
Posts: 7191
Dallas, Texas, US
One photographer I work with won $30,000 on such a mishap (use of a photo on a CD cover, they only had rights for tshirts and mugs). This one was settled out of court, he sued for over $100,000.00 for one image usage.
The other is a member here, someone snagged a shot I believe from his website and put it on a Penny Saver cover, he won, I want to say around $5,000 to $10,000 but do not remember....Neither of these photographer work in the commercial world commanding big bucks. Netiher lost a dime from the usage of these photos UNLESS you take into consideration that the photos could have been purchased for commercial usage and were not, instead they were stolen.
The photographer doesnt have to lose a dime to make a lot of money on these cases.
Makeup Artist
Camera Ready Studios
Posts: 7191
Dallas, Texas, US
an addition to the above info.....In over 20 years in this business I have been privy to over a dozen lawsuits on improper usage of photos. I have yet to see a photographer lose. The biggest win was over $60,00 but it was so long ago I do recall specifics. The smallest amount was the Pennysaver cover. In only a few of the cases could the photographer ever have sold the shots that were stolen. Judges in all of these cases have been pretty good to the photographer, the photographers made much more then they could have had the photo been purchased properly.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
I thnk Mary is driving home the point. The damages specified in the statute have been called "Nuclear" if you register the image before you publish the photo.
Makeup Artist
Camera Ready Studios
Posts: 7191
Dallas, Texas, US
Alan from Aavian Prod wrote:
I thnk Mary is driving home the point. The damages specified in the statute have been called "Nuclear" if you register the image before you publish the photo. In the cases I am referring to the photos were registered (copyright) after they were published and before the lawsuit was filed.
William is the one with the Penny Saver win. He can verify that case and when or if the photo was copyrighted. I do know for a fact that in 2 of the larger wins the photographers did a copyright of the shots AFTER they contacted the attorney. You dont need to copyright every photo you take to own it.
I have come to discover that judges have a lot of wiggle room in these cases. They appear in my experience to favor the photographer.
Photographer
Vito
Posts: 4582
Brooklyn, New York, US
WRONG! If you register the image even after the infringement (and the copyright is granted) you can still collect punative damages and court/lawyer costs. READ the section that RavenEyes posted, then look up the words. It's right there in the Copyright Offices information page. If you believe that your copyright has been infringed and you anticipate a legal dispute, if you have not yet done so, it is advisable that a registration be made as soon as possible in order to secure the opportunity for valuable remedies and litigation advantages available for timely registration under the Copyright Act. If a work is registered prior to infringement or within three months of publication, statutory damages will be available as an option for monetary relief and the recovery for attorneyâs fees may be available.
Makeup Artist
Camera Ready Studios
Posts: 7191
Dallas, Texas, US
Vito wrote:
WRONG! If you register the image even after the infringement (and the copyright is granted) you can still collect punative damages and court/lawyer costs. READ the section that RavenEyes posted, then look up the words. It's right there in the Copyright Offices information page. you are 100% correct.
You do not need to copyright the image that was stolen until you discover it was improperly used.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
Vito wrote:
WRONG! If you register the image even after the infringement (and the copyright is granted) you can still collect punative damages and court/lawyer costs. READ the section that RavenEyes posted, then look up the words. It's right there in the Copyright Offices information page. Please read the section very carefully, all of you. It says that if you register PRIOR infringement or WITHIN THREE MONTHS of publication then you may qualify for statutory damages. You will also notice that I have always said prior to the dispute. You guys are getting way to over the top. We are saying the exact same thing and you guys just don't seem to be able to read what I am saying clearly.
You can register an image any time within five years of taking the image and before there is a dispute and you will STILL be able eligible for statutory damages.
David recommends registration before publication because it eliminates the possibility of a dispute as to when the image was published or taken.
The copyright office gives you a three month window. The K-Mart scenario suggested above is exactly why. The theft can occur before one can promptly register the image. Which is why I told the guy that prompt registration takes care of the situaton.
However, if you rigister the image more than three months after it is published and after a dispute arises, then you cannot collect statutory damages. Also there are no punitive damages in copyright. There are statutory damages. The purpose of statutory damages to prevent the photographer from having to prove actual damages and to give an incentive to discourage the theft of intellectual property.
Oh well. You guys need to learn to read more carefully.
Photographer
Eli Anthony
Posts: 550
Mentor, Ohio, US
Lets not forget the $15.6 million dollar mistake Tasters Choice made.................... "When it comes to coffee, Russell Christoff is more of a fresh-brewed than a freeze-dried kind of guy. So he never scrutinized the Taster's Choice label. When he finally did, he was staring back at himself. While shopping for Bloody Mary mix at a drug store in 2002, the former actor and model saw a younger version of himself, the one who had once posed for the freeze-dried coffee brand. True, the label only showed a man's eyes, nose and mouth hovering over a white coffee cup, but they were two eyes, a nose and a mouth Christoff knew exceptionally well. "I looked at it and said, 'Expletive, that's me!"' Christoff, 58, recalled Tuesday, five days after a jury awarded him $15.6 million for Nestle USA's unauthorized use of his mug. " http://library.findlaw.com/2005/Mar/29/172882.html http://abclocal.go.com/wls/story?sectio … id=2698073
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
Mary wrote:
In the cases I am referring to the photos were registered (copyright) after they were published and before the lawsuit was filed.
William is the one with the Penny Saver win. He can verify that case and when or if the photo was copyrighted. I do know for a fact that in 2 of the larger wins the photographers did a copyright of the shots AFTER they contacted the attorney. You dont need to copyright every photo you take to own it.
I have come to discover that judges have a lot of wiggle room in these cases. They appear in my experience to favor the photographer. Mary, the only way you can file a lawsuit for an image for copyright is after it has been registered. It isn't even possible to file one prior. There is no time limit as to when you can file, but after five years there is no benefit of presumption.
The copyright act does not provide for punitive damages at all. Your own posts demonstrate the validity of the act.
In the case of a violation for an image that has been been registered prior to a dispute is $30,000-$150,000. In one case, the person collected only $5,000 after trial. The judge is free to award whatever he wants as actual damages. What is clear, he didn't award statutory damages for if he did, he would have been compelled to award a minimum of $30,000.
In one case, someone suggested the damages were only $30 and I have seen that happen before. In your case, the damages were $5,000.
In the case of the settlement, we have no idea what the underlying reasons were for the settlement, if it was actually that much. However, council for the other side may have believed that the image was registered in advance.
However, the statutory damages only apply to images registered in adance of the dispute (or within three months of publication). Otherwise you are relegated to actual damages.
Photographer
Vito
Posts: 4582
Brooklyn, New York, US
Wrong. The image does not have to be registered to file. You should file asap in that case, but not necessarily.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
Vito wrote:
Wrong. The image does not have to be registered to file. You should file asap in that case, but not necessarily. You need to read the statute very carefully. I know a lot of people are under the same impression that you are. You don't need to register to own the copyright. If you look at it carefully, you will see that you do need to register to file a lawsuit. The registration can be filed at any time. There is no limitation.
There are a lot of reasons for it. One reason is that the person who stole your image may have registered it himself and which case you must attack his registered copyright. In the end though, in a copyright dispute, one party must go to court with an approved application in hand. If you look, the requirement is written clearly in the statute.
Check out this link. http://www.publaw.com/advantage.html
There is a good explaination and he discusses the fact that a work must be registered before a lawsuit can be filed.
Makeup Artist
Camera Ready Studios
Posts: 7191
Dallas, Texas, US
In the cases I mentioned as I said....the images were copyrighted after an attorney was contacted and Before the suitswere filed.... all on the advice of the attorney.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
Mary wrote:
In the cases I mentioned as I said....the images were copyrighted after an attorney was contacted and Before the suitswere filed.... all on the advice of the attorney. Then I misread your post and I stand corrected.
Photographer
Viper Studios
Posts: 1196
Little Rock, Arkansas, US
You must file before any legal action can be taken.
This has nothing to do with who owns the copyright. It is a prerequisite to suit.
When it was filed in relation to the the infringement determines the damages available, statutory, monetary (profits chasing) and injunctive.
Whether it it worth pursuing is based upon whether it was registered prior to infringement or after AND also what it was used for and whether any gain was made.
In the K-mart case, if the image was not filed prior to infringement (and the statutory damages thus not applicable, with exeptions) the only remaining remedies are injuctive releif and profit.
If the profit would only have been $30.00 then he can only ask for $30.00 and an injunction.
In other words, this demonstrates the reason for registering the images.
Someone could steal an image and use it for a limited purpose (meaning no real profits were generated). If so, it may not be worth the time and effort to pursue.
On the other hand, if it was registered before infringement, then you can ask for statutory damages, attorney fees, etc.
Even if you didn't register it until after the infringment, if the unlicensed user made a healthy profit, it would be worth chasing the profit.
In each case, you are looking at the timing of events, the use to which the image was put, the profit, if any, that was made, and whether the time and expense of pursuing the action makes it worth the risks and issues involved.
If some 14 year old kid steal an image and puts it up at myspace.com, he is violating your copyright. You have rights. But those rights may be of little value.
You can always seek an injunction, but that gets into whether the cost of seeking the injunction are worth it.
It's not that the copyright law isn't helpfull, but it doesn't grant you a windfall either.
In most cases as DMCA takedown notice to myspace would get the image pulled.
You can do that on your own, without an attorney, with a simple e-mail.
As for the Taster's Choice case, that wasn't a copyright issue, but a release issue.
Mark
Photographer
Viper Studios
Posts: 1196
Little Rock, Arkansas, US
Before anybody comes back and jumps on me, the "or withing three months" of publication is still relevant. Plus, "publication" is by an authorized user or licensor.....meaning Kmart's improper use of an image does not constitute "publication" as they had no right to "publish it" in the first place.
Nevertheless, if the photographer failed to register the image within three months of authorized publication, he doesn't have much to go on.
A "brochure" is a perfect example of a widespread use that may be limited in value.
Mark
Photographer
James Jackson Fashion
Posts: 11132
Philadelphia, Pennsylvania, US
Alan, I apologize I misread what you said. We are in fact saying the same thing...you can not file a claim without having applied for the copyright. You don't have to have the copyright yet, but you need to have filed.
You can contact a lawyer any time.
One thing I may still be misreading though, you're saying that the 5 year time limit is after shutter click and if I read it correctly the 5 year time limit is after publication...
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
raveneyes wrote:
One thing I may still be misreading though, you're saying that the 5 year time limit is after shutter click and if I read it correctly the 5 year time limit is after publication... And I believe that I just typed quickly and you are correct. It is five years from publication so my post was not clear.
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